Preliminary Breath Test

Defendant appealed the decision of the trial judge sustaining the violation of R.I.G.L. 1956 § 31-27-2.1 (refusal to submit to a chemical test). Defendant claimed that the trial judge improperly inferred that the preliminary breath test that was administered to her operated on fuel-cell technology rather than infrared light absorption. The Court held that it was reasonable for the trial judge to infer that the PBT that the officer administered to the defendant utilized fuel-cell technology because the state’s expert witness testified that all PBTs issued by the Department of Health operated on the principle of fuel-cell technology and that all Rhode Island police were instructed to use only PBTs that had been issued by the Department of Health. Accordingly, the Court affirmed the decision of the trial judge.Town of Warwick v. Leslie Haley, C.A. No. T12-0019 (May 23, 2012).pdf

Preliminary Breath Test

Defendant appealed the decision of the trial judge sustaining the violations of R.I.G.L. 1956 § 31-27-2.1 (refusal to submit to a chemical test) and R.I.G.L. 1956 § 31-15-11 (laned roadway). Defendant claimed that because she submitted to a PBT at the scene she should not have been requested to submit to another test at the station. The Court held that the language of R.I.G.L. 1956 § 31-27-2.1 only refers to the “actual” test given at the station and the language of the statute was not intended to include PBTs. Accordingly, the Court held that the defendant had not been prejudiced and sustained the violation of § 31-27-2.1. Town of Middletown v. Svetlana Semenova, Ca.A. No. T11-0049 (March 26, 2012).pdf

Preliminary Breath Test

Defendant appealed the decision of the trial judge sustaining the violation of R.I.G.L. 1956 § 31-27-2.3 (revocation of license upon refusal to submit to a preliminary breath test). Defendant claimed that the officer failed to prove by clear and convincing evidence that he had reasonable grounds to request that the defendant submit to a PBT and, further, that the officer failed to testify specifically as to the defendant’s performance on the field sobriety tests. The Court held that the officer had reasonable grounds to believe that the defendant operated under the influence because, in addition to observing the defendant stumble and sway from side to side while walking down the side walk, enter and exit a liquor store, then proceed to get into a vehicle and drive, the defendant had red and bloodshot eyes, he emitted an odor of alcohol, and he admitted to consuming alcohol. Accordingly, the Court sustained the violation against the defendant.City of Providence v. Dennis P. Lonardo, C.A. No. T11-0063 (February 6, 2012).pdf

Preliminary Breath Test

Defendant appealed the decision of the trial judge sustaining the violation of R.I.G.L. 1956 § 31-27-2.1 (refusal to submit to a chemical test). Defendant argued that after she refused the preliminary breath test it was a violation of her rights for the officer to request that she take a second test in the barracks.  The Cour disagreed and held that the “none shall be given” language in § 31-27.2.1 is clearly in contemplation of a refusal of an actual breath test and that there is nothing in the statute to indicate that the legislature contemplated it applied to a preliminary breath test. See Almeida v. United States Rubber Co., 107 A.2d 330, 332 (R. I. 1954). “[I]t is clear that[,] the only test pondered by the legislature in drafting § 31-27.2.1 is the ‘official’ breath test conducted at a police station[;] if the legislature deems it appropriate for police to administer a test at the station after one has been administered at the scene, it would make little sense to hold that police cannot request for a motorist to submit to that test, simply because he or she refused a PBT.” Accordingly, the violation was sustained.

State of Rhode Island v. Patricia Sargent.pdf

Preliminary Breath Test

Defendant appealed the decision of the trial magistrate sustaining the violation of R.I.G.L. 1956 § 31-27-2.3 (revocation of license upon refusal to submit to a preliminary breath test). The Court held that the arresting officer had formulated the requisite reasonable belief that the defendant was driving under the influence of alcohol because the defendant had crossed the yellow divider line, was speeding, had bloodshot watery eyes, had slurred speech, and he emitted an odor of alcohol on his breath. Unlike § 31-27-2.1 (refusal to submit to a chemical test), § 31-27-2.3 does not require the defendant to be informed of the penalties which will result from a refusal to submit to a preliminary breath test. Accordingly, the Court affirmed the decision of the trial magistrate sustaining the violation against the defendant.

State of Rhode Island v. Seth Bettez, C.A. No. T09-0061 (February 1, 2010).pdf

Preliminary Breath Test

Defendant appealed the decision of the trial judge sustaining the violation of R.I.G.L. 1956 § 31-27-2.1 (refusal to submit to a chemical test). The Court held that § 31-27-2.1 specifically concerns subsequent chemical tests and only becomes operative once a driver has been placed under arrest. Thus, the fact that the defendant agreed to submit to a preliminary breath test at the scene, does not preclude her from being charged with a violation of § 31-27-2.1 for refusing to submit to a subsequent chemical test at the station. Therefore, the Court affirmed the trial court’s decision to sustain the charge against the defendant.City of Warwick v. Leslie Haley, C.A. No. 09-0040 (June 3, 2009).pdf